FALLESATHA BANU Vs. MUHAMMAD RASHIDHUDDIN QURAISHI

JUDGEMENT

(1.) The plaintiff in the appellant. The appeal arises out of a suit instituted by the plaintiff to recover possession of the suit properties and the share of the mortgage amount duo to her under Ex. A, the suit mortgage. The parties to the suit are Muhammadans and their relationship is indicated in the genealogical tree given in the lower Court's judgment. After the death of Jalaluddin and his daughter Syed Unnissa Bibi, a usufructuary mortgage (Ex. A, dated 10 November 1893) of 13 items of jenm properties was executed by his heirs, defendant 1, and Hauifa Bi, his wife, for herself and acting as the guardian of defendant 2, and others, in favour of Syed Unnissa Bibi's husband, defendant 3, and their minor daughter, the plaintiff. The mortgage amount of Rs. 4,000 represented the Ma bar paid by defendant 3 at the time of his marriage with Syed Unnissa. The plaintiff claims a 4/6ths share of this amount, namely Rs. 3,333-5-4. Out of the income of the properties 500 paras of paddy represented the interest on the mortgage amount. After the mortgage the properties were taken on lease back by the mortgagors under the pattam chit Ex. B.

(2.) In 1895, the mortgagors sold the properties to defendant 3 for a sum of Rs. 10,000, Rs. 4,000 of this amount being credited towards the mortgage amount due under Ex. A. After the purchase the properties were treated by defendant 3 as if they were his own, ignoring the rights of the plaintiff who was a co-mortgagee under Ex. A. He created successive mortgages over the properties in favour of different persons. Finally a mortgage with possession was executed in favour of defendants 4 and 5 and the properties were taken back by him on a lease. Defendants 4 and 5 got a decree for possession in O.S. No. 31 of 1926 and this suit was filed by the plaintiff as a pauper on the day the judgment was delivered in the suit. Various contentions were raised by the contesting defendants. It is not necessary for the purposes of this appeal to refer to all the contentions. The Subordinate Judge dismissed the suit as barred by limitation under Art. 132, Lim. Act. The mortgage money due under Ex. A having fallen due in 1900, a suit for recovery of the amount due under it instituted after 1912 would be barred by limitation.

(3.) In the lower Court the plea of limitation was sought to be got rid of by having recourse to Section 20, Lim. Act, and the plaintiff's case being throughout that she had been receiving rent, her 5/6ths share (416 2/3 paras of paddy a year) from her father till 1922-23. Oral evidence in support of this case was given by the plaintiff. This evidence wad totally disbelieved by the learned Judge. We were taken through the evidence by the learned Counsel for the appellant, but the evidence has not produced any impression on our minds favourable to the plaintiff. Defendant 3 (the father) and the plaintiff (his daughter) were living together. He was maintaining her probably from out of the income of. the properties, but there is no reliables evidence to show that the plaintiff was receiving her share of 416 2/3 paras of paddy yearly from her father. It is unnecessary to repeat the reasons given by the learned Judge for disbelieving the oral evidence tendered by the plaintiff. Unless interest is received as such, Section 20, Lim. Act, cannot extend the period of limitation in favour of the plaintiff. We agree with the lower Court's finding on this point. In this Court Mr. Narayanaswami Ayyar relied on Clause 2, Section 20, Lim. Act, which says where mortgaged land is in the possession of the mortgagee, the receipt of rent or produce of such land shall be deemed to be a payment for purposes of Sub-section (1), i.e., a payment for extending the period of limitation. The plaintiff's case apparently is that she, in spite of the purchase of the properties by her lather under Ex. 2, still remains a mortgagee, while defendant 3 occupies the position of a mortgagor. Having regard to the facts of the case and also the law bearing on the point, it is difficult to see how it can be said in this case that the mortgaged land is in the possession of the mortgagee after Ex. 2.